Monday, Feb 24 2014
• 10 a.m. (ET)

Toxic Chemical Spills In West Virginia And North Carolina

In early January, thousands of gallons of a toxic chemical leaked into West Virginia’s Elk River. The accident caused the contamination of the water supply in nine counties. Earlier this month, a broken pipe owned by Duke Energy leaked toxic coal ash into North Carolina’s Dan River. And two weeks later, a second leak from a different pipe spilled more arsenic-laced chemicals into the river. While the water ban has been lifted in West Virginia, thousands refuse to drink the water. And in North Carolina, tests of river water show high levels of iron and aluminum. Diane and guests discuss recent chemical spills and ongoing concerns over the safety of the U.S. water supply.

Transcript

10:06:53

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Six weeks after a toxic chemical spill in West Virginia, thousands of residents still refuse to drink the water. In North Carolina, two broken pipes in coal ash ponds owned by Duke Energy leaked arsenic into the Dan River. The spill threatened fish and wildlife for 70 miles downstream.

10:07:22

MS. DIANE REHMJoining me to talk about chemical spills in West Virginia and North Carolina and the implications for the safety of America's water supply: Dina Cappiello of The Associated Press, David Schnare of the Energy & Environment Legal Institute, joining us from Charlotte, N.C., Frank Holleman of the Southern Environmental Law Center. I know you'll want to weigh in. Give us a call, 800-433-8850. Send your email to drshow@wamu.org. Follow us on Facebook or send us a tweet. And welcome to all of you.

10:08:08

MS. DINA CAPPIELLONice to be here.

10:08:09

MR. FRANK HOLLEMANThank you very much.

10:08:10

MR. DAVID SCHNAREThank you.

10:08:11

REHMGood to have you with us. Dina Cappiello, let's talk about what happened in North Carolina, the Duke Energy spill. What's going on there?

10:08:24

CAPPIELLOSo basically what happened in North Carolina, this is actually what we call a coal ash pond. It's actually basically a dam of sorts where the company, when they were actually burning coal -- it's now a natural gas fired plant actually -- was putting basically the refuse, which was actually created by efforts to control air pollution, ironically -- and what happened in this case is that there were pipes running along the bottom of this pond.

10:08:50

CAPPIELLOIt contained a lot of coal ash. And they collapsed, first one and then a second. Right now, as far as we know, the company says it's successfully plugged both of them, so it's no longer discharging into the river. But as you pointed out, the U.S. Fish and Wildlife Service said that we have 70 miles of riverbed that is coated with a mixture of ash. And that ash naturally contains toxic things like arsenic and heavy metals.

10:09:19

CAPPIELLOThe standards for drinking water were violated in terms of what the measurements were, but I think one thing that makes this very different from the West Virginia case is that typical water treatment will actually trap these heavy metals. And so it wasn't a risk to drinking water. It's more of ecological risk.

10:09:37

REHMBut isn't the EPA responsible for this coal ash?

10:09:45

CAPPIELLOAbsolutely. So this is a long, long saga. This goes back to the early '90s. Congress passed 1990 clean air act amendments controlling sulfur, requiring power plants, coal-fired power plants to control for sulfur, but that created a waste issue. You're trapping these particles. They're put into landfills, sometimes dry landfills, sometimes mixed with water into these ponds. And the EPA has yet to issue federal standards for them, so it's really a patchwork quilt on the state level of what is required.

10:10:23

CAPPIELLOThey have to be lined. Do we have to monitor ground water in the vicinity? How do you close them? And so really, presently, it's regulated by the states. The EPA is considering and has proposed two separate options for dealing with coal ash, one which would treat it as a hazardous waste and one which would treat it similar to what we treat household garbage that would deal with this.

10:10:47

CAPPIELLOAnd they're also separately going to deal with kind of the structural integrity of these dams. And after a huge coal ash spill in Tennessee back in late 2008, the EPA actually went around the country and used a contractor and evaluated actually how sound these were from a structural perspective, which is separate from the pollution -- water pollution perspective.

10:11:10

REHMI see. We did invite the EPA administrator, Gina McCarthy, and/or any other representative to join us this morning. Gina McCarthy declined. A spokesperson said the agency, as you've indicated, is currently drafting new rules for coal ash ponds and therefore cannot comment at this time. Frank Holleman, turning to you, what about your local environmental protection agency? Did they investigate what was going on at these coal ash ponds?

10:12:00

HOLLEMANWell, Diane, unfortunately, we have a complete failure of our local state environmental agency. We, on behalf of local community and conservation groups, have been trying to enforce the existing laws, not waiting for some new regulation which may or may not come and may or may not apply. But at each turn, the local agency has attempted to thwart our vigorous enforcement and has, in fact, has entered into a settlement with Duke Energy for two of the sites that would require no cleanup at all.

10:12:41

HOLLEMANAnd to make matters even more disturbing, now the Department of Justice has convened a federal grand jury, which is inquiring into the state agencies' activities, Duke's pollution and their very conduct, the very litigation and settlement we're talking about. So we have really a complete failure of the state agency to enforce the laws in this instance.

10:13:12

REHMTell me what the problem is at these coal ash ponds. I gather they're either unlined, and they are backed by some flimsy dikes. I gather that back in 2010, the North Carolina Department of Environmental and Natural Resources tested the ground water near Duke Energy's ash ponds in 2010, and then you apparently sued Duke Energy. And the settlement was for about $100,000.

10:14:00

HOLLEMANWell, Diane, there are a lot of complicated issues in energy and environmental matters, but this one is not complicated. What Duke Energy does, believe it or not, is it stores coal ash, which contains toxic substances, including arsenic, in unlined holes in the ground next to rivers and drinking water reservoirs that are held back only by dikes made of earth that leak. There are three major utilities in the Carolinas, the two Carolinas.

10:14:38

HOLLEMANTwo of the three have agreed with us to empty out these outmoded ancient and leaking and illegally polluting lagoons and move their ash to safe, dry, lined landfills away from the waterways. Only Duke has not. And the state agency, which has done very little else, but it has confirmed under oath that at every site where Duke Energy stores coal ash in the state of North Carolina, Duke Energy is violating either the federal Clean Water Act, state clean water laws or both.

10:15:16

HOLLEMANAnd they have known this for years and have, in fact, stated it on the record six months prior to this spill, yet neither Duke nor the state agency have done one thing to clean up any of the illegal pollution or move the coal ash to safe site. Diane, what we say is this. You and I are required to store our kitchen garbage in a way that is safer than the way Duke Energy is storing this coal ash. All we say...

10:15:45

REHMAll right. And I want you and our listeners to know we invited Duke Energy, the governor, Republican Pat McCrory, who, by the way, was an employee of Duke Energy for 28 years. We also invited the North Carolina Department of Environmental Regulation to participate in today's program, and all three declined.

10:16:17

REHMHowever, Duke Energy gave us this statement. "We will do the right thing for the river and surrounding communities. We are accountable. Drinking water has remained safe. The pipe has been permanently plugged. We take responsibility for this event, and we're taking another look at the management of our ash basins." So what do you think about all of this, Dina Cappiello? Is Duke trying to do the best it can with what it has?

10:17:05

CAPPIELLOWell, I think Duke, like a lot of other energy companies, is waiting for what the word from the EPA is going to be on this because the question is, where does it go? Do you take this, do you put it in a truck which goes through communities into landfills? What type of landfills with this end up in? And in concert, Diane, with what the EPA is actually doing on the coal ash ponds, which are dumps in some kind of fashion, we call them, you have to also remember that these coal ash ponds, they have actual pipes that come out.

10:17:40

CAPPIELLOThey're settling ponds, right? They're kind of very crude, water treatment facilities, if you will. You pump in a mix of ash and water. The ash settles out. There's water left. But as research has shown, that water contains contaminates that were in the ash, right? And then it goes out these pipes into waterways. There are no federal limits on what goes out of those pipes, those point discharges, which are very heavily regulated if it's a sewage treatment plant or a water treatment plant.

10:18:11

CAPPIELLOAnd the EPA has proposed limits on those. The last time we updated that law was in 1982. So besides these spills -- I mean, the point I'm trying to make here is, besides these spills where you have, you know, a snow melt that makes the waste go over the top of the dam, we have daily discharges that are unregulated, largely.

10:18:31

REHMDina Cappiello, she's national environment reporter for The Associated Press. We'll take a short break here. When we come back, we'll talk more, take your calls. Stay with us.

10:20:00

REHMAnd welcome back. In this hour, we're talking about toxic chemical spills in West Virginia and in North Carolina, two broken pipes in coal ash ponds owned by Duke Energy, which leaked arsenic into the Dan River. Here in the studio: Dina Cappiello of the Associated Press, David Schnare -- he's general counsel for the Energy & Environment Legal Institute.

10:20:38

REHMOn the line with us from North Carolina is Frank Holleman, senior attorney for the Southern Environmental Law Center. Want to turn to you now, David Schnare. What is your reaction to Duke Energy's response to these recent spills? Do you think they've done enough?

10:21:07

SCHNAREIt remains to be seen whether they have, but what's really critical, I think, is to understand the amount of harm or true alarm that ought to be applied in this case. The facts of what's in coal ash show that it's only slightly elevated levels of arsenic, lead, and mercury than what you find in normal soil. So the question is, has Duke done what they would do with normal soil? And have they taken advantage of some of the economic opportunities they have?

10:21:37

SCHNAREForty-three percent of coal ash is recycled and turned into things like bricks and concrete and all. So they have an incentive to find a way to use this to take it out of these. In other cases, there are going to be some ponds where the best thing to do is to simply -- it's a hole in the ground already. If it's adequately lined or if it's appropriate, you just cover it over, cap it, and turn it into a soccer field.

10:21:59

SCHNAREEvery single one of the Duke facilities will have to be examined separately. And I don't doubt but that they have done that, especially in light of the fact that there are two -- I'm sorry, 32 coal ash ponds at 14 current -- that were former power plants in North Carolina. And Duke owns them all. And so what you have here is a situation where the state and Duke are attempting to work together to try to figure out what the right thing to do is.

10:22:25

SCHNAREI am distressed that the partnership we're supposed to see between EPA and the states seems to have broken down in this case. I am concerned that EPA has over -- since in the early 1900s -- 1990s, I'm sorry, not 1900s -- has concluded that the levels of contamination in these ashes are unworthy of hazardous waste attention.

10:22:52

SCHNAREThere's not a lot of new health data to show that things are any more different now than they were in 1993, but there is concern about the effect on rivers -- not public health but on the rivers. And that's the real problem here. Is Duke doing enough to protect those rivers? Because once they're contaminated by these kinds of sediments, it takes five to 15 years for those rivers to recover.

10:23:14

REHMExactly. David Schnare is general counsel for the Energy & Environment Legal Institute. Joining us now from Charleston, W.Va. is Dr. Rahul Gupta. He's health officer and executive director for the Kanawha-Charleston Health Department in West Virginia. Welcome to "The Diane Rehm Show," Dr. Gupta.

10:23:46

DR. RAHUL GUPTAThanks for having me.

10:23:47

REHMThe CDC says the water is safe in West Virginia for all uses. Do you agree with that assessment?

10:24:02

GUPTAWell, the CDC actually has not -- they have deemed it appropriate for use. And it is the words that are confusing the public a whole lot because people were looking for the term safe because that is part of that Safe Drinking Water Act, which is a federal law. But when the CDC folks were here, as well as our state partners, what they have said so far is appropriate to use.

10:24:32

REHMBut that does not mean it's safe for drinking?

10:24:37

GUPTAThey have not basically addressed the issue of whether it is safe. So people -- one of the concerns is, while it is safe or it is not safe and when terms are used that -- to describe the water other than safe, it does become something that confused people. And that is the reason perhaps that we're not having as many people drinking the water six, almost seven weeks out of the crisis that we've had.

10:25:09

REHMDo you have any general assessment of how many people are actually drinking the water?

10:25:19

GUPTASure. So what we have done is we -- since the beginning -- at almost the beginning, we have continued to maintain online surveys on a website. And we periodically look at those surveys. The recent one we looked at, we saw only 4.6 percent of the 300,000 people were actually drinking the water.

10:25:39

REHMWhat kinds of health issues are you seeing relating to the water in West Virginia?

10:25:48

GUPTASo it's important to note that so far we cannot assert a cause and effect relationship. However, what we have seen clearly is a spike in visits for symptoms in the local emergency rooms, as well as physician's practices, for things like rashes, skin rashes, eye irritations, nausea, vomiting, stomach pains, also related to odor, which is asthma attacks, headaches, and migraines and some of the other things.

10:26:20

GUPTAWe've even had a student had seizures in school because -- I believe to be self-reportedly because of the odor. So we've had the same situation happen once the water was allowed to be used after the Jan. 13 press conference. We had another spike when people start to use the water. So these are some of the symptoms, but they're all -- remember important too is that they're all self-reported symptoms that people are associating with the use of the water.

10:26:48

REHMWhat about you? Does the water still smell like licorice to you?

10:26:56

GUPTAThat's very important thing to realize, but, yes, and it depends. At the office, we're not smelling the licorice because it's much more on flat plain. Where my house is in the hills area, and there, there is continuing, although it is dissipating -- the smell is. But there's still small level of -- a low level of smell. And we do know that, that this chemical has a very low odor threshold meaning that there could be very small amounts of the chemical in the water, and it could still have the smell. So it is smelling at home.

10:27:33

REHMNow, as I understand it, Dr. Gupta, there was an independent team commissioned by the state from Corona Environmental Testing that tested the water in 10 homes, finished last Wednesday. How soon will we know the results?

10:28:01

GUPTASo this was a three-prong approach. One was exactly as you stated, and it's about a four-week pilot project. So I believe we're about two weeks into it. The idea is to look at a very piloted 10 homes, find out a lot of things, whether the hot temperature is a problem in the water or is it something that is regardless of the temperature of the water, is a pipes issue within homes or not.

10:28:27

GUPTAThe -- also two other prongs are the team is coordinating a panel of international and national experts to look at -- relook at, review the data behind coming up with the screening levels that have deemed to be usable for the water. Another also part of this study is to look at the odor threshold. One thing to emphasize here is, when this chemical leak was detected, very little scientific information was available, both from the industry perspective as well as in the public arena.

10:29:02

GUPTASo the challenge here now is -- and the evolving situation also is to develop the science that will help us address the issue. So it's almost like flying a plane while constructing it.

10:29:18

REHMDr. Gupta, how do you think West Virginians generally have been affected by this crisis?

10:29:29

GUPTAI think most of the West Virginians that have been impacted realize the unprecedented and historic nature of this crisis. Nowhere before in the history of this country -- as at least in my view and the view of a lot of people here -- have the safe water been denied to 300,000 people at one time. And it continues to occur and go on for this long. So there is obviously, along with the physical symptoms we've talked about, there's a lot of anger, frustration and anxiety within the populations because this is just something that is not supposed to happen in this nation.

10:30:08

REHMI have heard individuals express their desire to move their families out of West Virginia because of this water crisis. Are you hearing similar thoughts?

10:30:27

GUPTAAbsolutely we are. And this is perhaps one of the biggest concerns after the safety and health of individuals. The second biggest concern is the economic impact. So people have gone from a -- what I consider a threatening stage to a planning stage to actually now moving stage. And we understand obviously, for a lot of professionals and skilled workers, it is not a direct impact that happens immediately.

10:30:54

GUPTAAnd the fallout is something that will be seen in several years to come. And that is really unfortunate because there will be so much opportunity cost of not only folks moving out but people that wanted to move in having difficulty believing that the water could be safe. And therefore that's what makes it even more important, both for individuals as well as the industries and businesses, that we do everything we can to make the water safe -- and I use the word safe again.

10:31:27

GUPTAAnd there's still some level of confidence in the population. And then work at a level to prevent such disasters happening anywhere across the United States. This is a question of having a national dialogue in water safety and water security.

10:31:43

REHMAre you drinking the water coming out of the faucets, Dr. Gupta?

10:31:49

GUPTAI have began to drink water at work, at some of the restaurants that I would frequent. At home, it is still a little bit difficult to drink water when it smells of licorice. But we are making every effort we can to resume the drinking. And of course we're waiting on the scientific data to help us make those decisions, as well as decisions that need to be made to declare this water safe.

10:32:17

REHMWould you recommend that children, pregnant women, anyone drink the water coming out of the faucets in West Virginia?

10:32:31

GUPTASo the water has been deemed appropriate for use, including drinking. And without federal and state partners, that is a recommendation that has been made. And we necessarily do not disagree with this recommendation. However, what we are seeing on the ground is, because of the often confusing but often slow information that has come out, that there are so many people -- more people that are waiting to hear that word safe before they begin to feed their little ones, their unborn and expecting mothers, their -- people who have chronic medical conditions, special needs populations, tap water.

10:33:15

GUPTAAnd we do understand that because that recommendation of those physicians in our community to maybe perhaps stick to the bottled water at this time does not necessarily conflict with our federal state partners because federal state partners are giving recommendations for general populations.

10:33:33

REHMDr. Rahul Gupta, he's health officer, executive director for the Kanawha-Charleston Health Department in West Virginia. Thank you so much for joining us, sir.

10:33:49

GUPTAThank you very much as well.

10:33:50

REHMAnd you're listening to "The Diane Rehm Show." Turning to you, Dina Cappiello, does the EPA have any role in the West Virginia water crisis or is it solely a local issue?

10:34:10

CAPPIELLOWell, in the case of West Virginia, just like every other state, it's the state's -- the state is the Clean Water Act enforcer. They're basically the EPA. EPA delegates to states. But when you have a spill like this, what the EPA typically does -- and it did do it in this case -- they sent an on-scene coordinator there to help with the response.

10:34:30

REHMOne on-scene coordinator?

10:34:33

CAPPIELLOWell, there's typically one point person.

10:34:34

REHMOK.

10:34:34

CAPPIELLOIt's usually a small team of people, but they're really, Diane, in an assisting role. And in the case of West Virginia, as we've talked about before, I mean, this is a chemical nobody knew anything about. It wasn't a coal site, right. It wasn't discharging anything into the river on a day-to-day basis. It was all in tanks. So the EPA, I think, at first was like, what is our role here? I mean, should we be actually responding to this when it is a chemical storage facility? It didn't really have any permits. It did have a plan if there was a spill. But -- so they're really in a supporting role here, and the state has primacy.

10:35:13

REHMDavid Schnare, in your mind, who is to blame for what happened in West Virginia?

10:35:21

SCHNAREWell, the company is to blame. But I did want to say one thing about EPA. I spent 33 years with the agency, and I started in the office of drinking water. And what happens in these kinds of situations is that the considerable analytical resources of the agency is put to good use and is made available. So in that kind of case, the agency's best role can be to get the science right. But there can be no question that, as you look more into the situation in West Virginia, this company was not in good shape. It's in bankruptcy today.

10:35:50

REHMAnd we're talking about Freedom Industries.

10:35:53

SCHNAREThat's correct, Freedom Industries. It's changed names a couple of times. It's in deep financial trouble. Clearly, if you don't have the management quality to keep a company running, you often are not doing the proper things on the ground. Those tanks should've been checked for leaks on a routine basis. Whether they were or not, we'll only know after investigation. But the kind of leak you're seeing here is extremely unusual.

10:36:17

SCHNAREThe last large contamination of a safe-drinking-water-program facility was up in the Midwest. I'm not going to name the city, but it was a biological outbreak. And it affected a very large number of people. These are extremely unusual events. And so when one of these happens, you want to take the time to find out not just who's at fault but what you do to prevent it. In this case, this is not a drinking water issue. This is a chemical maintenance program, and it's going to be addressed under RCRA and eventually, I suspect in this case, under superfund.

10:36:53

SCHNAREThat dirty ground -- keep in mind the tank was punctured from underneath. This is not like something else. On the other hand, if a terrorist had come in and put an explosive next to it, it would've had the same potential effect. And under those conditions, I'm very concerned whether the local water supplies had the right plans to prepare.

10:37:14

REHMDavid Schnare, general counsel for the Energy & Environment Legal Institute. Short break here. Your calls when we come back. Stay with us.

10:39:59

REHMWelcome back. Here in the studio: Dina Cappiello of The Associated Press, David Schnare -- he's general counsel for the Energy & Environment Legal Institute -- and, joining us by phone from Charlotte, N.C., Frank Holleman, senior attorney for the Southern Environmental Law Center. Frank Holleman, before I open the phones, I wanted to ask you for your thoughts as to the reluctance of federal regulatory agencies to get involved with these very serious incidents in your state and in West Virginia.

10:40:53

HOLLEMANWell, fortunately, the criminal investigators for the Environmental Protection Agency are now involved in investigating the activities of Duke and our state agency in North Carolina. But I do -- I am concerned that, in our situation, Duke Energy has long been violating existing law. We don't -- apart from any new regulations or complex analysis, basically Duke has been going 80 miles an hour in a 45-mile-an-hour zone by violating the Clean Water Act openly. And the state has acknowledged that.

10:41:31

HOLLEMANSo we would like to see stronger law enforcement, as now is occurring, against illegal pollution as it now exists and also to see that this toxic brew that is contained in these unlined lagoons is appropriately stored away from waterways. There's always going to be a human error. But if you don't sit it right on top of your drinking water reservoir or your river, you can make a mistake and not have a catastrophic failure.

10:42:07

REHMWell, here's a tweet we've just gotten saying, "Ameren, in Labadie, Mo., is trying to build new coal-ash ponds on the flood plain, right next to the Mississippi River." What does that say to you, Dina? Is this going to happen all over the country?

10:42:30

CAPPIELLOWell, it already is happening. And I would say that some of these cases hopefully will open the eyes of state regulators to say, if we are going to put coal-ash ponds on a flood plain, they should be lined. They should have walls that won't be exceeded in the case of a flood. So I hope that the states -- this is a state issue, Diane, right now, 'cause the Feds have not made national standards -- would have regulations.

10:42:57

CAPPIELLONow, a lot of these coal-ash dumps we're talking about that lead to these spills that are unlined, aren’t really being monitored by the states, were put in place back in the 1990s. But the EPA itself has said that we can expect more coal-ash to be created. So this is not going to go away anytime soon because they're cracking down on other air pollutants from coal-fired power plants that will create more of this solid waste.

10:43:23

REHMAll right. Let's go to Taylor in Lost River, W.Va. You're on the air, sir.

10:43:31

TAYLORHi. Thank you, Diane. I'd just like to say we listen to your show often.

10:43:36

REHMThank you.

10:43:37

TAYLORI just wanted to make a comment about the discussions that I'm hearing on the water situation in West Virginia. And I think it should be clarified that the majority of West Virginia is not affected at all by the Charleston problem. And I'm not making light of their problem, but it is affecting the tourism industry in West Virginia because we'll have the perception that this is West Virginia-wide, and it's not.

10:44:03

TAYLORI think that should be clarified. I have a bed and breakfast near Lost River and a general store and a café in West Virginia, in Lost River, where, you know, our water is fine. And we're getting calls from, you know, prospective clients wanting to stay at the inn and use the general store and the café, and our water is just fine. And I think it should be clarified when you discuss the water situation in West Virginia, that it's very, very localized.

10:44:30

REHMSure. All right. I'm glad you called. Just how localized, Dina?

10:44:37

CAPPIELLOWell, I think he's making a point that, in the case of the spill from Freedom, it was one river, and it was a major city's water supply. But I would make this point. I mean, all over Appalachia, whether we're talking about West Virginia or Kentucky or Ohio or North Carolina, a story that myself and my colleague, Seth Borenstein, did at the AP, shows that there is a long legacy of coal related contamination of waterways.

10:45:00

CAPPIELLOAnd this stuff, whether it's MCHM, which we know nothing about, or arsenic, which we know a lot about, is sometimes going into private drinking water wells that are totally unregulated, nobody's watching them but the owner, and are being totally soiled. We had a story out this weekend from my colleagues in North Carolina, Michael Biesecker and Mitch Weiss, talking about another Duke site outside of Wilmington, N.C., where an unlined coal-ash pond is contaminating the groundwater. It's moving towards the town of Flemington, N.C., where 400 people have drinking-water wells.

10:45:35

CAPPIELLOAnd now Duke is offering to hook them up to a public water supply. So although this one Freedom Industries thing is rare in terms of the chemical and the type of facility it was, this is happening all over with coal, whether that's from coal-ash ponds at power plants -- or in the case of West Virginia, Diane, two spills right after Freedom Industries, one from a coal-processing facility and one from a mine.

10:45:58

REHMFrank Holleman, how was the arsenic discovered?

10:46:05

HOLLEMANWell, I do have to correct one thing. There's far more arsenic in this coal as seen in surrounding soil. It has been known for months, and really for years at Dan River, that Duke's coal ash was contaminating the groundwater with arsenic above the state standards, as well as other heavy metals like antimony.

10:46:30

HOLLEMANOnce this coal ash hit the river, the state agency tested the water and found -- although it first misinterpreted the results, disturbingly -- found the arsenic level in the river after the spill to be four times the human health standard. So we've known for years that the arsenic at Dan River and at other sites across the Carolinas from coal ash is contaminating groundwater. We have one site in the Carolinas where the arsenic level is 300 times the legal standard in the groundwater in the town.

10:47:10

10:47:16

10:47:24

CHRISTIANHi, Diane. I love you and your show.

10:47:26

REHMThank you.

10:47:28

CHRISTIANI have a comment and a quick question of your guests.

10:47:30

REHMAll right.

10:47:34

CHRISTIANFive million people rely on the Ohio River for drinking water, and that's not counting, you know, all the farming that goes on. This is an agricultural area. The Ohio River is three times more polluted than the Mississippi. And, unfortunately, our local water company could turn off what Cincinnati did -- the valves. And so we were basically lumping it. I'm still drinking bottled water, as is my family -- I've got three small kids. So we were very concerned of what happened upstream in West Virginia.

10:48:11

CHRISTIANAnd I guess my question for you and your guest from the Energy & Environment Legal Institute is -- that's a phony front group that has changed its name repeatedly, and on their website, say that, you know, they are who they are to avoid, you know, less leading information. But they are funded by all the coal groups, even though they purport to be a nonprofit.

10:48:41

REHMAll right, Christian. Thanks for your call. David Schnare.

10:48:46

SCHNAREWell, thank you. The Energy & Environment Legal Institute is a pro-environmental group that also believes in finding solutions that are good for the economy. Now, when we look at these kinds of issues, we have to ask, what are the right incentives that make the protection of the public the best? The reality is that the coal companies know they're liable. They're very aware of it. I spent almost 10 years of my life at EPA suing coal companies because of air pollution violations. And so the question becomes, do we need more regulation to create a stronger incentive for them to act responsibly?

10:49:24

REHMDo we?

10:49:25

SCHNAREI think, on the water side and on the hazardous waste and with regard to old dams and old facilities, I think we need to be more aggressive in our enforcement. Whether we need new rules, I'm not so sure because we have very good rules already. On the drinking water side, when you look to see how much contamination there is out there, it's not a very common event.

10:49:46

SCHNAREBut what you will find -- and I've been concerned about this since 1978 when I started looking at these issues -- are private wells that people almost never test. And there is the situation where the public health departments of the state have to take a leadership role.

10:50:03

REHMBut the private wells are a very, very small part of what's being contaminated here.

10:50:12

CAPPIELLOI just have a point about the legality here. And, Frank, if you're still on, please chime in here. But my understanding with the Duke case, and the legality is kind of really interesting, because these companies do have permits to discharge into the river. They have water permits.

10:50:28

REHMState-issued permits.

10:50:30

CAPPIELLOState-issued that are basically -- they're under the Federal Clean Water Act because they're basically acting as the EPA on the state level. But then what happens is the discharges violate water-quality standards. And that, I believe, is what Frank's talking about in terms of Duke violating the Clean Water Act. It's actually what they're discharging exceeds what should be in the water.

10:50:49

REHMGo ahead, Frank.

10:50:49

HOLLEMANWell, it's worse than that, actually. They're violating the existing permits because these dams and lagoons spring unpermitted leaks and spill contaminated effluent water from these lagoons directly into the rivers. And Duke has even gone so far as to build ditches to direct these illegal polluted flows directly into drinking-water reservoirs.

10:51:19

HOLLEMANSo it's even more a garden variety, straightforward, knowing and open violation of the law that our state agency has not prevented or enforced the law against. But, fortunately, we now have a criminal Grand Jury from the United States Department of Justice looking into it. So...

10:51:39

REHMWe have...

10:51:40

HOLLEMAN...deregulation -- and we need to enforce the laws that we have as well.

10:51:44

REHMWe have an email from Pat, who says, "It's my understanding the EPA has tried to address these problems over the last 10 years, but they've been denied access to the plants by the owners of the property for testing." Is that accurate? Dina.

10:52:11

CAPPIELLOWell, it's kind of -- no, because after the 2008 Tennessee Valley spill, which covered 300 acres with coal ash, they actually went around and did look at the structural integrity of a bunch of dams -- these coal-ash dams nationwide, and gave them different rankings. And, for the record, the Duke facility at question was ranked by the EPA as a high hazard, to have a significant environmental harm if it actually collapsed, which it did. Right? Our reporting down in North Carolina has shown that EPA report went into the ether. Nobody at the state saw it.

10:52:49

CAPPIELLOJurisdiction changed to a different agency that mentioned the pipes. It mentioned some of the risks associated with the pipes. And so the question is, the EPA did get access to look at the structural integrity of these dams, but, again, the recommendations it made for these companies were voluntary because there are no federal standards.

10:53:07

REHMAnd you're listening to "The Diane Rehm Show." Tell me who is going to pay for everything that has to be done to correct this problem or these problems, Frank Holleman.

10:53:27

HOLLEMANWell, Duke CEO says in the newspaper that ratepayers will not have to pay to clean up the Dan River spill. But they're either going to try to get the insurance company to pay for it or that they will -- Duke will pay for it.

10:53:44

HOLLEMANHowever, I will just have to say, if I was -- being in North Carolina, you have every reason to be skeptical of any assurance Duke makes because most of what -- much of what they've told us about critical issues relating to these topics have proven not to be accurate. So I hope that the state -- that the Duke board, as well as state rate setters, will ensure that Duke lives up to this word.

10:54:12

REHMWhat do you think, Frank -- David Schnare?

10:54:17

SCHNAREI'm going to be down in North Carolina on Wednesday talking about energy with some of the folks in that area. And I assure you the ratepayers always pay. The public utility commission will cause -- or will allow it. And the insurance rates will go up, and the electricity rates will go up because that's what -- there is no one else to pay it. It's not -- there may not be a distribution on some of the stock, but the bottom line is the ratepayers always pay. North Carolinians will pay for this. On the other hand, they will also benefit.

10:54:48

REHMHow?

10:54:48

SCHNAREBy -- once Duke is forced to clean up and take a responsible position, they will be the beneficiaries as well.

10:54:55

REHMI wonder if they'll do the maximum or the minimum. Dina.

10:55:00

CAPPIELLOI'm going to just put this in mega context because you have to remember, here's -- we're in an administration that is really cracking down on coal with regulations for carbon, mercury, and air toxics for the first time. Coal's already struggling against low gas prices. So my sense is that these companies aren't going to want to pay more to have these wastes regulated as a hazardous waste. I think that the EPA, at the end of the day, will regulate them more as a solid waste and not a hazardous waste, although they do contain hazards.

10:55:27

CAPPIELLOSo I think that the companies, what you're seeing is a pushback against these federal regs because of the financial implications of them. If the EPA did classify coal ash as hazardous, that would be a huge expense for these companies to deal with this ash -- not only the ash already in the ground but the ash that they're going to generate in the future because of air-pollution regulations.

10:55:48

REHMAnd you've already got one company going bankrupt. So what does that mean?

10:55:53

CAPPIELLOWell, I think Freedom's a little bit different because it was actually a chemical facility. And I think that they are -- were a rare player here. I mean, they are going to basically dissemble that whole entire site. It's not going to be a storage site anymore. I think that David made a great point. Is it going to be a federal hazardous waste site? Who pays for that, Diane? Will taxpayers if there's no responsible party and they go bankrupt?

10:56:19

CAPPIELLOAnd I think one of the key questions that I have yet to answer and have yet to have the EPA answer for me is, what happens -- say the EPA does, and goes to regulate its coal-ash ponds. What happens to these sites like Duke? This was not an operational dump. It was no longer receiving coal ash. It's a natural-gas-fired power plant now. It does not create this ash. Are those going to be hazardous waste sites when they're closed and if they're not cleaned up?

10:56:43

REHMLots of questions remaining. We will continue to follow this story. It's such an important one, not just for West Virginia, North Carolina, but for the country as a whole. Dina Cappiello, David Schnare, Frank Holleman and earlier, Dr. Rahul Gupta, thank you all so much.

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